What I dub the “worst-result” principle is a criterion that identifies civil war and tyranny as the worst evils that could befall a state, and prescribes their prevention. In this thesis, I attempt to define the worst-result principle’s concrete prescriptions and institutional arrangements to meet these. To do so, I explore different understandings of the worst-result principle, that each contributes to the general argument. Montesquieu’s crucial insight concerns the separation of powers to prevent the state from collapsing into despotism. Judith Shklar shows that ‘damage control’ needs to be constantly performed so as to minimize chances of governmental brutality. Roberto Unger points at the importance of encouraging citizens’ involvement in the political process to safeguard freedom. I finally argue, in the light of historical evidence, that it would be unreasonable to think that the task of preventing tyranny can be effectively performed in the absence of courts entrusted with checking powers.

The idea of ¡¥semi-presidential system¡¦ was proposed by Duverger (1980), and it aroused substantial following studies. Newly rising democratic countries have also adopted semi-presidential system. After 1990, Taiwan also adopted a semi-presidential systems right after the constitution revised. As the member of the system, the understanding and improvement of theoretical and practical for the system is necessary and timing. This study will plan to compare the constitutional frameworks and operational types of semi-presidential countries between France and Taiwan. We try to find the variables that influence the constitutional operation. We expect this study can provide a causal model for the further empirical research. After compare the constitutional statues and its operations difference between France and Taiwan, we have the constitutional statues boundary of semi-presidential system. We also have the constitutional operations basic rule by constitutional interpretation. To be a normative constitution, that is, its norms govern the political process or the power process adjusts itself to the norms, constitutional operations should be operate between the ¡§boundary¡¨ and the ¡§basic rule¡¨. We expect this study can provide a dialogue platform between political science and law and construct an operative standard for judicial review.

No description available.

The advent of the Charter of Rights and Freedoms signaled a new and vastly expanded role for the judiciary. By entrenching our civil liberties into the Canadian Constitution, the courts were given the express authority to override inconsistent statutes. Due to the inherent overlap between law and politics, election law is an area that is particularly sensitive to this recent enlargement of judicial power. Despite this, the courts have scrutinized many areas of election law and many federal and provincial statutes have been fundamentally altered. The purpose of this thesis is to determine whether the courts have developed a uniform theory of judicial review where election law is concerned via four case studies: electoral boundary redistribution, prisoner voting rights, the publication of opinion polls during campaigns and third party spending limits. Through an extensive review of the relevant case law and literature, I conclude that the courts have failed to develop a coherent and consistent theory judicial review regarding the application of the Charter to election law. My analysis reveals that the inconsistencies stem largely from three main sources: first is the failure of the courts to adopt a single vision of what constitutes a fair electoral system; second is that the case studies are dealing with two different sections of the Charter (ss. 2(b) and 3); and third is the Oakes test which has expanded judicial discretion along with the potential for disparity. If consistency is ever going to be achieved, the courts need to adopt a single vision of democracy in Canada. Until then, we are left to guess when our political rights may be justifiably restricted under the Charter.

Work plays a dominant role in modern society. It is through work that the economic well being of any society is sustained. Workers who perform various tasks contribute to the well being of society as well as to their betterment as individuals. Thus paid employment has assumed a prominent role in modern society. It is an incentive on individuals to contribute to socio-economic welfare, while their needs and aspirations as individuals are also satisfied. But for an orderly society to exist, there has to be a subjection of some members of society by others, a division between those who have the social mandate (express or tacit) to exercise power for and on behalf of others. Thus work relations comprise those who exercise managerial power(employers) and those subject to managerial power (employees). In broader political relations, the task of social management is performed by the state. However those exercising managerial functions do not have unfettered discretion. Power should be exercised within acceptable social limits and be used to achieve realistic social goals. Thus it has been felt that the laws should always ensure that the incumbents of governmental power do not exceed the scope of their power or abuse it. Hence the process of judicial review. This gives the courts the power to review the decisions of administrative authorities in order to protect individual citizens who might be adversely affected by bad administrative decisions. This analogy has been applied in employment relations in order to protect individual employees against arbitrary dismissal by employers. It has been held that an employee cannot be dismissed without a valid reason and in compliance with a fair procedure. The question asked here is whether this is sufficient to ensure substantive employment protection. Is judicial review really effective in employment relations? It is observed that judicial review in labour law has many limitations as compared to the administrative law context. First, it comes face to face with the problem of the public/private law distinction, which holds the employment relationship to be fundamentally a private relationship between the employer and employee. This complicates the application of public law remedies in supposedly private relations, where the parties are assumed to have freedom of contract. The second problem involves the debate as to whether the state should impose many restrictions on the modern corporation or there should be minimal state intervention to allow the corporation to function in accordance with the labour market demands and economic necessity. It is concluded that the law of unfair dismissal has consequently been put in a dilemma. While the need has been perceived to curb the arbitrary use of managerial power by employers, substantive employment protection can hardly be guaranteed. The problem seems to be that of striking the balance between the interests of employees, employers and society at large. / Thesis (LL.M.)-University of Natal, Pietermaritzburg, 1995.

Racism persists individually and institutionally in the U.S. and race-based comedy prevails in media, accepted by diverse audiences as jokes. Media priming and Social Identity Theory theoretically ground this two-part experimental study that examines Latino participants' judgments of in-group (Latino) and out-group (White) alleged offenders in judicial cases after being primed with race-based stereotype comedy performed by an in-group (Latino) or out-group (White) comedian. First, participants read race-based stereotype comedy segments and evaluated them on perceptions of the comedian, humor, enjoyment, and stereotypicality. Second, participants read two criminal judicial review cases for alleged offenders and provided guilt evaluations. Importantly, a distinction was made between high and low Latino identifier participants to determine whether racial identity salience might impact responses to in-group and/or out-group members in comedy and judicial contexts. The results reveal that the high Latino identifiers found the race-based comedy segments more stereotypical than did the low Latino identifiers. Latino participants rated the comedy higher on enjoyment when the comedian was perceived to be a Latino in-group member as opposed to a White out-group member. The high Latino identifiers rated the White alleged offender higher on guilt than the Latino alleged offender after being primed with race-based comedy. Simply projecting in-group or out-group racial identity of comedians and alleged offenders with name manipulations in the study influenced how participants responded to the comedy material, and persisted in guiding guilt judgments on alleged offenders in the judicial reviews based on participants' Latino identity salience. A Latino comedian's position as popular joke-teller in the media overrides in-group threat, despite invoking in-group stereotypes in humor. Even with greater enjoyment expressed for Latino comedians' performing stereotypical race-based material, the tendency to react more harshly against perceived out-group members as a defense strategy to maintain positive in-group salience remained in real-world judgments on alleged offenders. Despite the claim that light-hearted comedy is meant to be laughed at and not taken seriously, jokes that disparage racial groups as homogeneous, simplistic, and criminal impact subsequent responses to out-group members in a socially competitive attempt to maintain positive in-group identity, to the detriment of out-groups.

This thesis examines how United States federal courts can review the President's exercise of the war powers to detain American citizens, or non-citizens having similar rights, as unlawful combatants. It argues that the separation of powers doctrine, based on Lockean principles, permits probing judicial review of such an executive detention, where the President exercises the war powers in a way that effectively adjudicates individual rights or impacts upon domestic affairs. / The constitutional controversy over unlawful combatant detentions is fundamentally a separation of powers problem. Existing functionalist and formalist theories about the separation doctrine, as well as dichotomous debates about individual rights versus national security, fail to reconcile judicial deference to executive decisions in some war powers cases with closer scrutiny in others. This thesis therefore proposes a new separation of powers theory that explains the existing war powers jurisprudence, while establishing principles upon which courts can vigorously review future executive war powers decisions that interfere with individual rights or impact upon domestic matters, such as with the detention of a citizen as an alleged unlawful combatant. / The thesis first sets out a separation of powers theory based on the political thought of John Locke, placing upon each branch a fiduciary duty to make decisions only in ways best calculated to serve the public good. The "deliberative processes" approach to the separation doctrine, growing out of this fiduciary duty, functionally distributes constitutional power among the branches depending upon which one is most institutionally suited to resolve the matter at hand. Judicial application of the political question doctrine in past war powers cases demonstrates such a Lockean deliberative processes analysis, in the ways that courts have questioned judicial competency to scrutinize the executive's strategic military decisions. Cases dealing specifically with unlawful combatant detentions, in turn, show that judicial competence to review executive military decisions increases when the President functionally adjudicates individual rights of the citizen, a deliberative process for which the courts are more institutionally competent. Accordingly, this thesis concludes that courts can review executive unlawful combatant detentions under adjudicative standards of legality, procedural fairness, and reasonableness.

Thesis (M.A.) - Carleton University, 2005. / Includes bibliographical references (p. 122-127). Also available in electronic format on the Internet.

Univ., Diss.--Marburg, 2003. / Literaturverz. S. XIX - XXXV.

Zugleich: Diss. Dresden, 2007. / Literaturverz.